State 'gender identity' rules raise questions at some schools

Friday

Mar 15, 2013 at 6:00 AMMar 15, 2013 at 3:08 PM

By Craig S. Semon TELEGRAM & GAZETTE STAFF

Under new state guidelines, the rights of “transgender” students in the state's public schools may well risk trampling on the rights of other students, said Tantasqua Regional School Committee member James P. Ehrhard.

The state Department of Elementary and Secondary Education's guidelines, issued recently after a new state law was signed by the governor, go too far, Mr. Ehrhard charged.

Under the new rules, he fears students face the prospect of having students of the opposite sex sharing bathrooms, locker rooms and showers.

“No child should be bullied and every child should be treated with respect,” he said. “But, at the same time, you have to put common sense into these regulations and common sense is missing.”

The law, An Act Relative to Gender Identity, went into effect July 1. It amended several Massachusetts statutes prohibiting discrimination on the basis of “gender identity.”

Last month, the DESE sent “Guidance for Massachusetts Public Schools Creating a Safe and Supportive School Environment — Nondiscrimination on the Basis of Gender Identity” to school districts. The document seeks to clarify the new law and how its regulations apply to school districts.

According to the DESE, a “transgender” person is someone whose gender identity is different from their sex at birth. And “gender nonconforming” is a person whose expression differs from stereotypic expectations associated with their birth sex.

The DESE says a school should accept a student's assertion of his or her gender identity unless it has a “credible basis” for believing the student is asserting the gender identity for “some improper purpose.” As a result, that may lead to transgender students accessing bathrooms and locker rooms that correspond to the student's gender identity, but not their anatomical sex.

In addition, transgender students who are uncomfortable using a sex-segregated restroom should be provided with an alternative, such as a single “unisex” restroom or the nurse's restroom. While some students may feel uncomfortable with a transgender student using the same sex-segregated restroom, locker room or changing facility, this “discomfort is not a reason to deny access to the transgender student,” the state DESE guidelines declare.

Furthermore, all students must be allowed to participate in intramural and interscholastic athletics in a manner consistent with their gender identity, state guidelines say.

Mr. Ehrhard has been outspoken on the issue and opposes allowing transgender students to use the bathroom of their choice. He also opposes allowing them to play on sports teams if it contradicts with a student's anatomical sex. He said that all teenage girls would feel deeply uncomfortable having an “anatomical male of any sort” using the same bathroom, locker room and, possibly, shower.

“You will be hard pressed to find someone who supports these regulations. At the same time, you will be hard pressed to find someone who will speak out against it,” he said.

He added: “People, rightly or wrongly, feel if they speak out against these extreme liberal policies that they are going to get personally attacked.”

Thursday night, in a 4-0 vote, the Tantasqua Regional School District Legislative Subcommittee approved a motion stating the state Department of Elementary and Secondary Education's guidance document, as written, appears not to be in line with the legislative intent of An Act Relative to Gender Identity (Chapter 199 of the Acts of 2011). The members also plan to area's state representatives and senator to have the DESE review and revise the guidance document such that it is accordance with the legislative intent.

The motion, which was made by Mr. Ehrhard, will go to the Tantasqua Regional School Committee Tuesday for a final vote.

Criticism is also coming from a group that is gearing up to oppose the new state dictates.

Andrew D. Beckwith, general counsel for the Massachusetts Family Institute, said the state DESE guidelines go against the clear intent of the Legislature.

“Everyone was promised that it was not a bathroom bill, not a locker room bill. It would not have passed if that were the case. What the commissioner has done is create an 11-page detailed policy that makes it a bathroom bill, specifically. That's the problem right there. You have a state agency going beyond the clear intent of the Legislature and an appointed official making law over elected officials.”

Mr. Beckwith said the DESE's guidelines endanger the privacy and safety of all school children.

“Mr. Beckwith said “If you're allowing a male who believes he's a female to use the girls' room because he's not comfortable using the men's room because of his gender identity issue, what about the comfort of the anatomical female who has to be in the same restroom?”

Worcester School Committee Vice Chairman Brian O'Connell said the only recommendation he found puzzling is abolishing the practice of different color robes, which in Worcester, represents the schools' colors for males and females during graduation.As for the potential of a transgender student using school showers, J.C. Considine, spokesman at the DESE said the agency guidelines do not address that issue.

Worcester School District's Chief Academic Officer Marco C. Rodrigues, Bay Path Vocational Technical High School Superintendent John A. Lafleche and Tantasqua Regional School Superintendent Erin M. Nosek said their respective districts have updated policies so they would be compliant. Those districts have not had any issues in connection with students using restrooms, locker rooms and changing facilities or participating in a sport that corresponds to their “gender identity,” but not their anatomical sex. Moreover, the districts are equipped with “gender neutral” restrooms, according to officials.

In order to provide a safe learning environment for transgender students, Jennifer Levi, the Transgender Rights Project Director at Gay & Lesbian Advocates & Defenders in Boston, said you have to provide access to all of the facilities that one needs to use during the school day and, of course, that includes restrooms.

“If you exclude a student from the restroom, obviously, they can't participate in the learning environment,” Ms. Levi said. “And, if you stick them in a separate facility, you essentially given license to the rest of the students to harass, bully and mistreat that student. Any solution that they would be proposing as an alternative is one that undermines a safe learning environment for students.”

In addition, Ms. Levy said if you prevent a transgender student from participating consistent with their gender identity, you deny them the opportunity to participate in sports in school.